On Wednesday November 7, 2018, the 4th U.S. Circuit Court of Appeals ordered a temporary halt to the water-crossing permit allowing the Atlantic Coast Pipeline to build through streams and rivers in West Virginia. Although the Army Corps of Engineers had issued a “Nationwide Permit 12,” the West Virginia Department of Environmental Protection inserted two stipulations, requiring that stream crossings must be completed in 72 hours, and that structures authorized by the permit could not impede fish from swimming upstream or downstream. ACP then changed its construction method for crossing the Greenbrier River to a method environmental lawyers say violates the WV DEP conditions.
The Corps reinstated their permit in October, and last week Appalachian Mountain Advocates, on behalf of the Sierra Cub, West Virginia Rivers Coalition, West Virginia Highlands Conservancy, Appalachian Voices, and Chesapeake Climate Action Network, asked the 4th Circuit Court for a stay to pause the construction. The Court issued the two-page order from Chief Judge Roger Gregory, with the concurrence of Judge James Wynn and Judge Stephanie Thacker.
Read the Court’s order here.
Charleston Gazette-Mail press coverage is here.
On October 19, 2018, the Pittsburgh District of the Army Corps of Engineers suspended a third permit that the Mountain Valley Pipeline (MVP) must have to build through waterways in Wetzel and Harrison Counties in West Virginia.
This is the third invalidation or suspension of MVP’s water crossing permits. On October 2, a federal appeals court vacated a similar permit for the rest of the West Virginia route, and the approval covering the more than 500 crossings on the Virginia portion of the route has also been suspended. Although MVP now has no authority to build through any waterbodies, streams, or wetlands on its entire 303 mile route, intensive construction continues in places between streams.
Opponents are calling on FERC to issue a stop work order, since FERC’s order approving the project requires that all permits be in place for construction to take place anywhere along its 303-mile route, and the necessary permits are clearly no longer in place.
Read the Roanoke Times report here.
Read the Appalachian Mountain Advocates release here.
On October 5, 2018, the US Army Corps of Engineers suspended the permit allowing the Mountain Valley Pipeline to cross all streams and wetlands on its route in southwest Virginia. A similar permit for West Virginia water crossings was vacated on October 2 by the 4th US Circuit Court of Appeals. In his letter to MVP, William Walker, chief of the regulatory branch of the corps’ Norfolk division, said, “Effective immediately, you must stop all activities being done in reliance upon the authorization under the NWP,” referring to the Nationwide Permit 12 authorization that was issued to MVP in January 2018.
Because there have been and continue to be massive amounts of muddy runoff and other environmental risks from MVP construction, lawyers for Appalachian Mountain Advocates, which represented the Sierra Club and other conservation groups in the successful legal challenge of the West Virginia permit, sought an immediate suspension of the federal authorization they describe as inadequate to protect Virginia’s clean water.
After winning the case in West Virginia, Appalachian Mountain Advocates sent a letter to FERC asking it to issue a stop work order for the entire MVP project, since the MVP’s October 2017 FERC approval was conditional on it having all required permits from both state and federal agencies. With the Army Corps permits invalidated, Appalachian Mountain Advocates argued that FERC’s stop work order must apply to all construction along the MVP route, not just the pipeline’s water body crossings.
Read the press coverage in the Roanoke Times here.
On October 2, 2018, the Fourth Circuit Court of Appeals issued an order that will significantly impede construction of the Mountain Valley Pipeline, halting MVP construction through rivers and streams in southern West Virginia for the foreseeable future. Last week, Appalachian Mountain Advocates, representing the Sierra Club, West Virginia Rivers Coalition, Indian Creek Watershed Association, Appalachian Voices, and the Chesapeake Climate Action Network, challenged the Army Corps of Engineers’ certification for the pipeline under a general permit, Clean Water Act Nationwide Permit 12. The Court agreed with their argument that the Corps improperly certified the MVP under the general permit.
The petitioners asserted that the Corps improperly imposed one condition requiring use of a “dry cut” method for constructing four river crossings “in lieu of” a special condition imposed by West Virginia which said “[i]ndividual stream crossings must be completed in a continuous, progressive manner within 72 hours.” Construction using the “dry cut” method was expected to take four-six weeks rather than 72 hours.
The Court vacated “in its entirety the Corps’ verification of the Pipeline’s compliance with NWP 12.” The order explained that if any part of the project requires an individual permit, then “the NWP does not apply and all portions of the project must be evaluated as part of the individual permit process.”
Appalachian Mountain Advocates expects the Corps will now be required to issue an individual permit for the project, requiring a significant environmental assessment, before it may proceed to construction.
Read the Court’s order here.
Press coverage in the Charleston Gazette-Mail is here.
Thanks to Lew Freeman of Allegheny-Blue Ridge Alliance for this report on the arguments in the Fourth Circuit Court of Appeals in September 28, 2018:
Yesterday, September 28, a three-judge panel of the Fourth Circuit of the U.S. Court of Appeals in Richmond heard arguments on two important cases challenging permits granted to the Atlantic Coast Pipeline (ACP). The first case challenged the December 13  decision by the Virginia State Water Control Board to grant a water quality certificate for the ACP (pursuant to requirements of Section 401 of the federal Clean Water Act). The second case challenged the decisions of the U.S. Forest Service to amend the Forest Plans of the Monongahela National Forest and the George Washington National Forest and to accordingly issue a Special Use Permit for the ACP to cross the two forests. The plaintiffs in both cases were a group of ABRA member organizations and others that were jointly represented by Appalachian Mountain Advocates (Appalmad) and the Southern Environmental Law Center (SELC). An article about the briefs filed in each case appeared in the September 21  ABRA Update (see https://www.abralliance.org/2018/09/21/court-to-hear-challenges-to-acp-forest-service-water-quality-permits/?highlight=court%20to%20hear%20challenges).
I attended Friday’s arguments. The lawyers representing our interests – Ben Luckett of Appalmad in the 401 case; D.J. Gerkin of SELC in the Forest Service case – were most effective. More about the oral arguments will appear in next week’s ABRA Update. For now, though, I want to highlight a particularly significant moment during the arguments presented in the Forest Service case. In the course of the argument presented by the U.S. Justice Department attorney representing the U.S. Forest Service, Chief Judge Roger Gregory, who was presiding over the panel, interrupted the attorney and noted that the U.S. Forest Service had been diligently asking Dominion Energy for more complete information on how the company would and could build the ACP through the steep forest lands in West Virginia and Virginia without causing environmental damage. The judge then observed that the Forest Service seemed to have suddenly changed its mind and proceeded to approve the requested Special Use Permit. Judge Gregory inquired of the attorney what the circumstances were that caused the Forest Service to change course. The attorney responded evasively, prompting the judge to interrupt him again and ask: “When?” The attorney tried to continue with his non-responsive response, and Judge Gregory again interrupted with: “When?” The judge’s “When?” question was asked twice more, but never received a response, prompting Judge Gregory to thunder: “Who’s running the train?” It was a riveting moment and one that also caught the attention of Michael Martz of the Richmond Times Dispatch [Martz’s article appears in both the Daily Progress and the Times Dispatch].
A recording of Friday’s oral arguments will be available on the Court’s website on Monday [October 1, 2018] at https://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments. The case numbers you will need to access the recordings are: 401 case – 18-1077; Forest Service case: 18-1144.
The Chesapeake Bay Foundation issued the following statement about the oral arguments challenging the ACP’s water quality certification:
“This year Virginians have seen firsthand the terrible damage that pipeline construction can do to communities and waterways. The Atlantic Coast Pipeline would cross Virginia waterways nearly 1,000 times from the mountains to the Chesapeake Bay, threatening them with erosion, mudslides, and polluted runoff. All of the evidence shows that the regulations in place cannot provide reasonable assurance that water quality will be protected from pipeline construction and operation. We are pleased that the federal appeals court is looking closely at this question.”
Dominion Pipeline Monitoring Coalition has revealed that the Chair of the State Water Control Board did not understand the authority of the Board, and therefore the votes on the Mountain Valley and Atlantic Coast Pipelines were not properly informed by law.
DPMC reports they have learned that Robert Dunn, Chairman of the Virginia State Water Control Board, did not understand the ramifications of the Board’s actions on water quality certifications for the Mountain Valley Pipeline (MVP) and Atlantic Coast Pipeline (ACP). This shocking information calls the Board’s process and decisions into serious question. Chairman Dunn’s failure to inform himself of the facts about the Board’s authority before taking votes on these enormously damaging and far-reaching projects is an outrageous dereliction of duty.
Dunn sent an email to the Richmond Times Dispatch saying:
Read your article in today‘s Richmond TD. You stated someone cast a [sic] anti-pipeline vote and someone cast a pro-pipeline vote. I do not believe the State Water Control Board has the authority to approve or disapprove the pipeline. The vote was not for or against the pipeline. Do you understand what the SWCB voted on? I believe the vote had to deal with permits to address water quality and standards. Question for you: Does or can the pipeline be built if the SWCB does not grant a permit?? If so, who has control? In other words does SWCB action have ability to stop the pipeline??? (emphasis added by DPMC)
Of course, the legal reality is that the Clean Water Act gives the state an absolute veto authority over any federally-licensed project that might violate its water quality requirements. The information submitted for the Board’s consideration before any votes were taken contains detailed legal analyses of the state’s authorities and role in regard to the pipeline processes. Thousands of people throughout Virginia understand that states have the power to deny approvals and thereby stop bad projects—clearly, Chairman Dunn does not.
Dunn’s question: “Does or can the pipeline be built if the SWCB does not grant a permit??” shows a failure to carry out his duty to understand the laws and regulations he’s charged with applying. If Mr. Dunn had questions about the scope of the Board’s authority, he should have sought the answer from those involved in the process and the official record upon which he was obligated to base his votes. And he should have made those inquiries before participating in the Board’s decisions, not months after taking his first vote on the pipeline certifications and after three Board meetings where these issues were discussed.
Dunn’s failure to do what was necessary to understand his proper role as a Board member and, therefore, his willingness to cast votes without learning the facts and law that should have governed him should disqualify him from continued service on the Board. We call on Mr. Dunn to resign immediately. If Dunn fails to do so, Governor Northam must act now to remove him from the Board and replace him with a person who will do his or her duty.